1. This appeal arises out of a suit for confirmation of possession of the plaintiff who purchased an occupancy holding in execution of a mortgage decree and took delivery of possession on 25-8-36. The defendant in the suit, who is the appellant before us, purchased the same holding on 15-11-43 in execution of a rent decree obtained against the recorded tenant. The plaintiff and defendant arc admittedly co-sharer proprietors of a mokadami tenure.
2. It has been conceded by the appellant both in the Courts below and here, that the suit filed by him was not framed under Section 199, Orissa Tenancy Act, and that, therefore, the decree obtained in the rent suit had the effect of a money decree only. It is obvious that the plaintiff auction purchaser was not impleaded in the rent suit. The question, therefore, that arises for decision before us is whether the plaintiff, who purchased a non-transferable holding in execution of a mortgage decree must yield place to the defendant who purchased the same holding in the Rent Court in execution of a rent decree. It is contended for the appellant that the plaintiff's purchase is of no effect and is not binding upon the appellant inasmuch as the plaintiff need not have been added as a party to the rent suit on account of his failure to give notice of his purchase by registered post, as required by Section 31B(2), Orissa Tenancy Act, 1938. This contention is met by the respondent who says that the auction purchase was automatically validated by reason of Section 31 (b) (1) and the right, title and interest of the judgment-debtor stood transferred in favour of the plaintiff by virtue of that section. Mr. Pal, learned counsel for the appellant, draws a distinction between these two cases and says that so far as the holding is concerned it continued to be represented by the old recorded tenant as the transferee failed to give notice. He accordingly contends that the holding passed at the rent sale and the defendant is entitled to remain in possession. A fallacy, however, lies in the argument that although under Section 31B(1) the auction-purchaser becomes wholly entitled to the holding he is liable to lose the holding by reason of his failure to give notice of his transfer. Mr. Pal has invited our attention to an observation of thelearned Chief Justice in -- 'Madhusudan v. Braj Sundar Das', reported in ILR (1949) Cut. 117 at p. 119, to the following effect: 'Mr. Mohapatra means to contend that the virtual significance of Section 31B(1) is to make the holding retrospectively transferable. I can pronounce without any hesitation that this is hardly so.'I am unable to make out what this observation means. If it means that the prernendment transfers are not validated by Section 31B(1), I decline to follow it as binding upon me. But whatever that be, the later Special Bench decision reported in -- 'Keshab Chandra v. Lokenath Jena', ILR (1951) Cut 1 has set the matter at rest by laying down that the transfer irrespective of notice takes effect from the date of transfer and is binding upon the landlord. The cases relied on by Mr. Pal can be also distinguished on the ground that admittedly the case before us is one in which all the co-proprietor landlords had not been impleaded and the decree obtained in the rent Court was not a rent decree. There can, therefore, be no question that the holding did not pass at the rent sale. It has further been pointed out by the Courts below that the defendant has not taken delivery of possession of the holding purchased by him. The question of ejecting one or the other of the auction purchasers does not arise. The suit was one for confirmation of possession and the plaintiff is admittedly in possession in pursuance of his own purchase. We are, therefore, satisfied that the judgment under appeal, confirming plaintiff's possession is correct and that this appeal should fail. The appeal is accordingly dismissed but in the circumstances there will be no order as to costs.
3. I agree that the appeal should be dismissed. As my judgment, referring this case to be decided by a Bench, would show I was inclined at the time of the original hearing to take the view that the absence of notice by the transferee to the landlord under Section 31B(2) does not invalidate the transfer or keep the right, title and interest subsisting in the transferor. On further consideration, it appears to me quite clear that that view is correct. Section 31B provides for transfers of occupancy holdings, which were made before the commencement of the Orissa Tenancy (Amendment) Act, 1938. By the previous Section 31, the Legislature had made all occupancy holdings transferable, and having done that it would have been anomalous for the Legislature to have left the title, of the transferees, who had obtained transfers prior to the amendment, in suspense. Undoubtedly even prior to the amendment the transfer of title was complete as between the transferor and the transferee, and it was only as against the landlord that transfer was incomplete in the sense that it was open to the landlord to treat the transferee as a trespasser and to claim, a mutation fee for the purpose of recognizing the transfer and, until such recognition, to treat the original tenant as the owner who could represent the holding in any proceedings that he may have to undertake for the purpose of realization of rent. Section 31B definitely did away the right of the landlord to treat the transferee as a trespasser and said, in terms, that he shall not be liable to ejectment, though it reserved to the landlord the right to collect, mutation fee and also fixes the quantum of such mutation fee, and a period of limitation for its recovery. It also preserved to the landlord the right to treat the ex-tenant as representing the holding in any proceeding for arrears of rent until the transferee gives notice to the landlord by registered post of the transfer. These provisions, to my mind, proceed on the basis that from the date of the Amendment Act a transfer which was previously valid as against the landlord became complete also against the landlord and that the only rights reserved to the landlord were those mentioned in Section 31B(1), for recovery of mutation fee and in Section 31B(2) for the representation of the holdings in proceedings for recovery of arrears of rent. It is, therefore, clear to my mind that the right, title and interest was not subsisting in the original tenant from the date when the Amendment Act came into force and it is only in that sense that the transfer became retrospectively valid. I should like to make it clear that the retrospectively is not meant to be given from the date of the transfer itself. I may also add that having regard to the decision of the majority in the Special Bench case reported in -- 'Keshab Chandra v. Lokenath Jena', ILR (1951) Cut. I, where we have held that in respect of transfers subsequent to the amendment the title is complete even without service of 'notice on the landlord, it will be anomalous to hold that in respect of pre-amendment transfers which are validated by Section 31B, the title itself will remain in suspense merely because the landlord is not served with notice. The view that all pre-Amendment transfers are valid, as against the landlord, in spite of the absence of notice has been accepted even by my learned brother Narasimham J. in the Special. Bench case, as appears from his judgment at page 32 of the report, though on the main question arising for decision in the case he has come to a different conclusion.
4. In the result, I agree that the appeal should be dismissed.